Juvenile Offenders and the Death Penalty

• Author: Alida V. Merlo,Peter J. Benekos
• Published date: 01 October 2005
• Date: 01 October 2005
• DOI: http://doi.org/10.1177/1541204005278678
• Published By: Sage Publications, Inc.
• Subject Matter: Articles

10.1177/1541204005278678
Youth Violence and Juvenile Justice
Benekos, Merlo / JUVENILE OFFENDERS AND THE DEATH PENALTY
JUVENILE OFFENDERS AND
THE DEATH PENALTY
How Far Have Standards of Decency Evolved?
Peter J. Benekos
Mercyhurst College
Alida V. Merlo
Indiana University of Pennsylvania
In 2002, the U.S. Supreme Court ruled that because they are less culpable and less able
to deliberate about their behaviors, the execution of mentally retarded offenders ex-
ceeded the prevailing standards of decency (Atkins v. Virginia). Based on this rationale,
and with increasing concerns over wrongful convictions and the execution of innocent
defendants, some questioned whether the Court’s decision could also apply to juvenile
offenders. In March 2005, the majority of the justices determined that executing adoles-
cent offenders violated the Eighth Amendment (Roper v. Simmons). This article reviews
(a) recent court decisions on the death penalty, (b) citizen and student opinions on juve-
nile executions, and (c) comparative policies on juvenile executions. The authors also
discuss the politics of the death penalty and the consequences of Roper on juvenile
justice policy.
Keywords: juvenile death penalty; evolving standards of decency; Supreme Court;
youth; juvenile violent offenders
In December 2003 a Virginia jury decided that Lee Boyd Malvo was guilty of the
murder of FBI analyst Linda Franklin. In determining the sentence, however, the jurors re-
fused to impose the death penalty. Malvo was 17, within a few months of his 18th birthday,
at the time of the murder. The jury’s unwillingness to sentence Malvo to death illustrates
some of the complexities and ambiguities of the juvenile death penalty debate in the United
States. Specifically, is the execution of juvenile offenders cruel and unusual punishment?
Are juveniles less mature and responsible than adults? Should juvenile offenders be less
culpable? What are the evolving standards of decency (Simmons v. Roper, 2003)? In re-
sponse to these questions, this article reviews recent court cases, public attitudes toward the
death penalty, and the ways in which the United States compares with other countries in its
use of the death penalty.
In January 2004, the justices of the U.S. Court agreed to review a Missouri Supreme
Court decision regarding the use of the death penalty in cases of youth who are 16 and 17.
Authors’ Note: An earlier draft of this article was presented at the Annual Meeting of the Academy of Criminal
Justice Sciences in Las Vegas, Nevada, on March 12, 2004. Special thanks to Joshua Dickey and Briana Sullivan.
Youth Violence and Juvenile Justice, Vol. 3 No. 4, October 2005 316-333
DOI: 10.1177/1541204005278678
© 2005 Sage Publications
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Benekos, Merlo / JUVENILE OFFENDERS AND THE DEATH PENALTY 317
The case was viewed as a test to determine if there was a national consensus on the death
penalty for juveniles (Feld, 2003; Greenhouse, 2004). The Court heard oral arguments in
Roper v. Simmons (2005) in October 2004 and ruled in March 2005, by a vote of 5 to 4, that
the Eighth and Fourteenth Amendments “forbid the imposition of the death penalty on of-
fenders who were under the age of 18 when their crimes were committed” (p. 25).
Juvenile Justice Policy
To understand the argument for executing minors, it is useful to assess the current
state of juvenile justice policy in the United States. There are indications of both a continua-
tion of the “get tough” stance that characterized the 1990s and a softening in this approach
to juvenile offenders. This ambivalence illustrates the difficulty in attempting to neatly cat-
egorize the system’s response as either exclusively punitive or lenient.
There is plenty of evidence that get tough policies continue to prevail. For example,
local school boards are more inclined to use the juvenile justice system to punish youth for
behaviors that were once handled by the school system. In Toledo, Ohio, a safe school ordi-
nance empowers police officers to handcuff youth and take them into custody for such be-
haviors as school dress code violations, shouting at classmates, and acting in a loud and dis-
ruptive manner (Rimer, 2004, p. 1). Similar actions are being employed in Florida and
Virginia. These strategies are related to the zero tolerance policies that were enacted to deal
with school violence in the 1990s (Lawrence, 1998).
Despite the fact that juvenile violent offending has continued to decrease (for the 7th
consecutive year) and that the incidence of school violence continues to recede, there is a
perception that schools are dangerous places and that unruly students have to be dealt with
harshly. In Lucas County, which includes the city of Toledo, more than 1,700 juvenile cases
under the Toledo safe school ordinance were referred to the juvenile court in 2002. The re-
sult is more student arrests for school misbehavior and more school suspensions and expul-
sions (Rimer, 2004, p. 15). The school shootings that occurred in the late 1990s heightened
public sensitivity to violence and reinforced fears that school violence could occur any-
where and at any time. The March 2005 shooting of five students, a teacher, and a security
officer in Red Lake High School, Minnesota, served as a reminder about the randomness
and unpredictability of school violence. The student who did the killing, 16-year-old Jeff
Weise, also killed his grandfather and the grandfather’s girlfriend before going to school,
where he committed suicide after the shooting episode (Davey & Wilgoren, 2005).
In his 2004 State of the Union message, President George W. Bush endorsed a get
tough stance toward youth and advocated random drug testing of children in grades 8
through 12. Although the U.S. Supreme Court has already upheld the use of random drug
testing for students who participate in extracurricular activities, the President’s proposal in-
cludes all students. Despite the estimated $23 million it will cost to establish this program,
some Congressional representatives embraced it (Jordan, 2004).
The move to adultify youthful offenders and waive them to adult criminal court sym-
bolizes a willingness to treat juveniles like adults and to punish them accordingly. Between
1992 and 1999, 49 states and the District of Columbia either established or expanded their
statutes regarding the waiver of juvenile cases to adult court. These legislative initiatives of-
ten mandate waiver or stipulate that certain youth by virtue of age and offense are to be ex-
cluded from juvenile court jurisdiction (Sickmund, 2003, p. 7). To date, there has been little
discussion about revising or repealing these waiver provisions. In his analysis of 1999 juve-

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318 Youth Violence and Juvenile Justice
nile court data, Puzzanchera (2003) found that of the 7,500 youth waived into adult court,
the largest percentage of offenders had committed property rather than violent offenses
(pp. 1-2). These data demonstrate that although some juveniles are being handled as adults,
it is not necessarily for serious offenses.
In their study of juvenile and adult sentencing outcomes in Pennsylvania, Kurlychek
and Johnson (2004) found that, contrary to expectations, juveniles transferred to criminal
court “are sentenced more harshly than their adult counterparts” (p. 505). The researchers
posit that transferred youth are presumed to be more dangerous and culpable, and judges re-
spond by imposing more severe sanctions.
The nationwide adultification process has also resulted in more juveniles being incar-
cerated with adults and serving long prison sentences. Pennsylvania constructed a new 500-
bed juvenile prison to incarcerate youth who are waived to adult court, convicted, and
sentenced to adult prison. Many other states simply house youthful offenders with adult of-
fenders in existing institutions. Comparing incarceration data from 1985 to 1997, Strom
(2000) noted, “Relative to the number of arrests, the likelihood of incarceration in state
prison increased for offenders under 18” (p. 1).
Conversely, there is evidence of a softening in the approach to juvenile offenders.
Lionel Tate, who killed a 6-year-old girl when he was 12, had originally been sentenced to
life in prison in Florida. In January 2004, just before his 17th birthday, Tate was released
from custody after the Florida Court of Appeals determined that his competency to stand
trial had not been properly established in 2001 (Feld, 2003; Goodnough, 2004). When
Lionel Tate subsequently entered a guilty plea to second-degree murder, and after having
served 3 years of incarceration in a juvenile prison in Florida, he was released to the custody
of his mother and later sentenced to 1 year of house arrest and 10 years of probation. While
living with another family, Tate was arrested in September 2004 for probation violation re-
lating to curfew (Aguayo, 2004). A Broward County Circuit judge added another 5 years of
probation to his sentence and released him to his mother to continue serving his sentence.
Feld (2003) argues that the Tate case “illustrates the hazards of disproportionality and
adjudicative incompetence when states try young offenders as adults in criminal court”
(p. 536). In other words, in this case the punishment was disproportionate to the compe-
tence and culpability of the offender, and therefore it violated the principle of penal
proportionality.
This response to Tate illustrates Bernard’s (1992) cyclic model of...